Wednesday, March 31, 2010
Okay, I know we joke around that land use lawyers are "dirt" lawyers, but that's becoming literal for me. As you may recall, I blogged recently about a giant dirt pile in our neighborhood. Although everyone here in Athens agrees they've never seen anything like it, apparently rogue dirt piles are not a totally uncommon phenomenon. One of my students, Chad Hayes, has been doing some research, and he ran across this article in The Roanoke Times.
My favorite quote from the article:
Some of the residents of the neighborhood, where hundreds of town houses and single-family homes have been built in recent years, have expressed concern, dismay and even a bit of merry mockery.
"Mount Sinai?" Orange Leaf Court resident Judith Liberman joked when asked what she thinks about the mound, visible from her town house.
"I keep waiting for Moses to come down."
We've dubbed our own dirt pile "Mt. Price" (after the name of the street) but it's also been called "Price Hill." I've even considered having t-shirts made. Our dirt pile is less than a month old, so I dearly hope we dont' find ourselves Roanoke's situation three years later.
Jamie Baker Roskie
Of course, there are people who love dirt piles.
Tuesday, March 30, 2010
I was recently forwarded this interesting on-line tool that seeks to facilitate transit-oriented development. Here's more from the site:
This Action Guide is a tool for local jurisdictions working to foster mixed-income transit-oriented development (TOD) around planned transit stations. The term “mixed-income TOD” (MITOD) is shorthand to describe a set of goals that includes the provision of a mix of housing choices, affordable to a range of incomes, for people at different stages of life within a specific transit station area. The goal of this guide is to help practitioners identify the most appropriate and effective planning tools for achieving MITOD in their transit station area, and ultimately to facilitate the development of mixed-income communities across the U.S..
This was very interesting to me as I just wrapped up the third and final "site visit" class with my Smart Growth Law seminar course. For this site visit, we traveled from Montgomery to Atlanta where we spent the day riding Atlanta's mass transit system (known as MARTA) in search of how many of the transit stops offered a mix of commercial, residential, and office uses within a reasonable walk (we defined that as less than 4 blocks) of the station.
The results were simple: not many.
Unlike the D.C. Metro system and several others, Atlanta's MARTA system is not very conducive to TOD. Indeed, one of the primary uses appears to be for riders to drive to the station, park their car, and then ride from there.
This scenario does not really promote transit use as an alternative to vehicular use. Instead, it treats transit as simply a complement to the originating vehicular use. Which means, if you can't drive (disabled, loss of license, can't afford a car, etc.), then the system is not really that useful in the big picture.
Fortunately, with many of the MARTA stops surrounded by parking, if demand rises, then it will be fairly simple (from a design perspective at least) to replace the parking with a mixture of compatible uses--thus creating more authentic TOD.
--Chad Emerson, Faulkner U.
Those of you not on any of the environmental law professors' or clinicians' listservs may not have heard about this, but there is quite a battle raging in Maryland over a case filed by the University law school's environmental clinic.
Below is a message regarding the controversy from Bob Keuhn, who was the subject of quite a controversy of his own when he was the director of the environmental clinic at Tulane. Ironically, Bob is now the president of the Clinical Legal Education Association.
As the nation’s largest association of law teachers, with over 750 members representing faculty at over 150 law schools in the United States, we are very concerned about attacks on the clinical program at the University of Maryland School of Law by some members of the Maryland General Assembly. These actions demonstrate a failure to understand the professional responsibilities of lawyers and the structure of contemporary legal education. Unfortunately, those attacking the law clinics appear more concerned about protecting favored businesses from compliance with the law than about supporting one of their state’s flagship schools.
As with other professions, hands-on work is a necessary part of a solid, responsible legal education. Every law school in America is required to provide its students with real-life practice experiences and the University of Maryland is among the best at doing so. In national rankings by other law professors, the clinical law and environmental law programs at the University of Maryland have consistently been ranked among the top ten in the country. Those programs benefit not just law students but all the citizens of Maryland by training ethical, skilled attorneys and providing countless thousands of hours of free legal assistance to those who otherwise cannot afford attorneys and would go unrepresented.
To effectively teach students and represent clients, these law clinics must be allowed to operate as other law offices, and law school clinics throughout the country, do -- zealously representing their client’s interests and following the commitment in the Maryland Rules of Professional Conduct to “ensure access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” But, some legislators are trying to impose restrictions and burdens unknown to other clinics or law offices, invading the sanctity of the lawyer-client relationship and harming both legal education and legal services for the needy in Maryland.
And even more disturbing is that this is happening at the bidding of wealthy, powerful poultry interests. Those promoting these restrictions seem to think legal disputes should not be settled in court but through intimidation. If the opponents of law clinic cases have violated no laws, then they have nothing to fear from a legal proceeding that will judge those issues. If on the other hand they have failed to comply, then they should not be placed above the law because of their money and influence in the legislature.
Former Supreme Court Justice Potter Stewart once said that it is important to know the “difference between doing that which you have a right to do and that which is right to do.” Whatever right the legislature may have to burden and intimidate the state’s law school clinics and interfere with their normal educational and professional responsibilities, taking those actions clearly is not the right thing to do for Maryland.
Robert R. Kuehn
Saturday I attended a very interesting lecture by Ken Reardon, who is a planning professor at The University of Memphis and a founding member of the Memphis Regional Design Center (MRDC). The lecture was part of an event called "Look at That! Fresh Approaches for Urban Redevelopment in Athens." The economy being what it is, many of our clients are looking for help with redevelopment, rather than combating sprawl, so I took the opportunity to attend this event, sponsored by the Athens-Clarke Heritage Foundation.
Reardon's lecture was very interesting. First he had all the participants engage in a group dialogue about our vision for Athens' future. Ideas included more urban agriculture, better downtown development, preservation of our small town character, and more affordable housing.
Then Reardon discussed how the MRDC has helped some of the most disadvantaged neighborhoods in Memphis, using team members from local design firms, University of Memphis, the Urban Land Institute, and other partners. He declared himself most proud of a project that turned the largest outdoor drug market in Memphis into a farmers' market, which is truly a noteworthy accomplishment. The center also played a key role in helping Memphis pass its new, form-based, Unified Development Code. All the time he was talking, I was thinking, "We need that here!" I'm planning to spend some time picking Reardon's brain over the next several months.
Jamie Baker Roskie
Michael Diamond (Georgetown) has posted two articles that were contributed to the recent Law, Property, & Society series book AFFORDABLE HOUSING AND PUBLIC-PRIVATE PARTNERSHIPS, Nestor M. Davidson & Robin Paul Malloy, eds., Ashgate Press, 2009. The first article is titled Affordable Housing and the Conflict of Competing Goods: A Policy Dilemma (p. 1). The abstract:
This paper, which was the keynote address at a conference on Affordable Housing and Pubic Private Partnerships at the University of Colorado Law School, is designed to point out the conflicts between various competing social “goods” in relation to the provision of affordable housing. In a world of finite resources in which competing goods cannot both be maximized at the same time, when the goods are incommensurable, how ought a society choose among them? The paper focuses on such issues as preservation of affordable housing and wealth creation; affordability and handicapped accessibility or green development. It examines various methods of societal choosing and provides a critique of each such method. It then cautions policy makers to be conscious of these incommensurable goals and to determine how to prioritize them.
The second paper is Another Model of Low Income Housing Tax Credit Development: Building Housing and Building Capacity (p. 51). The abstract:
This paper was first delivered at a conference on Affordable Housing and Pubic Private Partnerships at the University of Colorado Law School. It addresses the creation of community institutions able to acquire and wield power in the affordable housing realm. While this ability has generally been associated with buildings purchased and operated by tenant groups, the paper suggests other affordable housing situations, particularly those developed under the Low Income Housing Tax Credit program, in which the accretion of power can occur. It proposes a model of tenant involvement in development and operation of affordable rental housing that can, in certain circumstances, create the type of durable institution normally associated with ownership.
Gregory M. Stein (Tennessee) has posted Private and Public Construction in Modern China. The abstract:
During the past three decades, real estate development in China has proceeded at an astonishing pace, with much development occurring before China’s 2007 adoption of its first modern law of property. Investors thus spent hundreds of billions of dollars in the real estate market of a nation that, during most of this period, had no established property law. How can a huge nation modernize so rapidly and dramatically when its legal system furnishes such uncertainty? And how can this happen in a nation that still purports to subscribe to socialist ideology?
I set out to answer these questions by interviewing dozens of Chinese and Western real estate developers, bankers, government officials, lawyers, judges, economists, professors, and consultants. My goal was to learn how real estate development was actually proceeding on the ground and how these actors functioned in a world of significant legal ambiguity. Given the rapid evolution of China’s modern real estate market, a complete understanding of this market requires more than just a thorough knowledge of published statutes and cases.
My earlier field research examined the Chinese land use right - which serves as a surrogate for property ownership in a nation in which private citizens may not own land - and then focused on real estate finance. This Article continues the analysis of how China’s real estate market functions by turning to public and private construction in China. It examines the commercial construction process, the sale of residential units, commercial leasing, and the construction of infrastructure in China.
Monday, March 29, 2010
Elizabeth J. Wilson (Center for Science, Technology and Public Policy, Humphrey Institute of Public Affairs, University of Minnesota) and Alexandra B. Klass (University of Minnesota Law) have posted Climate Change, Carbon Sequestration, and Property Rights, forthcoming in University of Illinois Law Review, Vol. 2010. The abstract:
This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement this technology, future CCS operators must be able to access hundreds of millions of acres of "pore space" roughly a kilometer below the earth's surface in which to store CO2 for hundreds to thousands of years. Here, we explore questions relating to ownership of subsurface pore space, physical takings, regulatory takings, and just compensation that will necessarily accompany the implementation of CCS in the United States. In order to accommodate the full range of property rights and takings issues that will arise with CCS, we propose a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO2 storage.
Daniel Mandelker has recently published a new book entitled "Designing Planned Communities". Here's some information about the details:
Designing Planned Communities is a clear statement of the design issues that are critical to creating livable and well-designed planned communities. The book shows how design concepts for planned communities can be translated into effective design guidance by local governments. Examples of design standards are provided from comprehensive plans, design guidelines, design manuals, and planned community regulations.
--Chad Emerson, Faulkner U.
Here's the latest press release from EPA's Smart Growth program
shows a continuing shift in development toward urban neighborhoods in
the United States, despite a slow a real estate market.
This trend, described in EPA’s 2010 report, “Residential Construction
Trends in America’s Metropolitan Regions,” shows that redevelopment
continues in many urban neighborhoods. Taking advantage of opportunities
to reuse land and to redevelop underused sites is a key smart growth
strategy. It helps communities protect natural lands from being
developed, strengthens the local economy, and puts new homes, stores,
and jobs within easy reach of surrounding neighborhoods.
The data show that, compared to the early 1990s, the share of
construction in urban neighborhoods was up 28 percent in mid-sized
metropolitan regions that have promoted redevelopment of underused sites
and development around transit, such as Portland, Ore; Denver, Colo.;
and Sacramento, Calif. For example, in 2008 Portland issued 38 percent
of all the building permits within its region, compared to an average of
9 percent in the early 1990s; Denver accounted for 32 percent, up from 5
percent; and Sacramento accounted for 27 percent, up from 9 percent.
The latest report shows that an even stronger trend toward urban
redevelopment in the largest metropolitan regions continued in 2008. New
York City accounted for 63 percent of the building permits issued within
its region. By comparison, the city averaged about 15 percent of
regional building permits during the early 1990s. Similarly, Chicago now
accounts for 45 percent of the building permits within its region, up
from just 7 percent in the early 1990s.
The original report, issued in Feb. 2009, examined building trends in
the 50 largest metropolitan areas from 1990 to 2007. The update
incorporates data for 2008, which included several months of national
More information on the report:
More information on EPA Smart Growth program:
Infill development is really great - unless is results in a giant dirt pile in your in-town neighborhood.
Jamie Baker Roskie
Sunday, March 28, 2010
Nicole Stelle Garnett (Notre Dame), author of the recently-released Ordering the City: Land Use, Policing, and the Restoration of Urban America (Yale U. Press, 2010), has posted three new papers to SSRN this month. The first, Unbundling Homeownership: Regional Reforms from the Inside Out, is forthcoming in the Yale Law Journal. The abstract:
Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic because they empower local jurisdictions to exclude unwanted residents. The difficulty is, however, that most proposed strategies to address this second puzzle threaten to undermine the efficiency gains that are produced when, as Charles Tiebout influentially predicted, local governments compete with one another for residents. By treating these two land use puzzles as property-entitlement problems, rather than regulatory-design problems, The Unbounded Home breaks free from standard land-use and local-government debates and offers novel solutions to address seemingly intractable difficulties. This review focuses on the two of Fennell’s proposals that, in my view, hold the most promise: First, the use of “entitlements subject to self-made options” or “ESSMOs”, to address local land use spillovers; and second, the reconfiguration of home-ownership to minimize owners’ incentives to demand that exclusionary land use policies.
Garnett's second article, coauthored with Margaret F. Brinig (Notre Dame), is Catholic Schools and Broken Windows. The abstract:
This paper represents the second stage of an effort to test previously unstudied implications of a dramatic shift in the American educational landscape, namely, the rapid disappearance of Catholic schools from urban neighborhoods. In a previous study, we used data from the Project on Human Development in Chicago Neighborhoods to measure how Catholic school closures affected perceived levels of disorder and social cohesion in Chicago neighborhoods. In this paper, we use data provided by the Chicago Police Department to test two related hypotheses about the effects of Catholic school closures on violent crime rates. The first is that Catholic school closures will lead, in relatively short order, to increased crime in a neighborhood. The second is that that crime will increase most dramatically in those police beats where previous school closures led to elevated levels of physical and social disorder and suppressed levels of social cohesion in 1995. We find that Catholic school closures are linked to increase in violent crimes, and that the most significant increases occur in police beats with the highest levels of school-closure-related disorder and -suppressed social cohesion in 1995.
Our study contributes in unique ways to two critical legal-policy debates about policing and education policy. First, and most significantly, our data provides a novel means of testing the broken windows hypothesis. We know, from our previous investigation, where school closures have elevated disorder and suppressed social cohesion, and, using a 3SLS analysis to solve simultaneous equations, we are able to link these findings with subsequent elevated levels of serious crimes. These findings suggest a connection between disorder and serious crime, even if not the direct one posited by Wilson and Kelling. Second, the study contributes new and important evidence to debates about school choice, especially in light of the very real possibility that urban Catholic schools will continue to disappear unless new sources of tuition assistance become available to the students that they serve.
Finally, Garnett has posted Order-Maintenance Agenda as Land Use Policy, forthcoming in the Notre Dame Journal of Law, Ethics, and Public Policy. The abstract:
Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later scholarly explications of the broken windows hypothesis also emphasize the connection between restoring the perception of security and its reality. One reason that social norms scholars link disorder and crime is that disorder has a predictable effect on law-abiding citizens: those with financial resources move away from, or choose not to move into, disorderly neighborhoods; those without resources remain inside and avoid public places. Even if these reactions (somewhat surprisingly) do not lead to more crime in a community, they certainly disadvantage city neighborhoods vis-à-vis their suburban alternatives. Moreover, and importantly, the goals of reducing crime and of helping poor, inner-city residents feel better about, and more vested in, their communities are not necessarily coterminous; order-maintenance policies might achieve the latter without achieving the former. In other words, it might be the case that order-maintenance policies “work” even if they do not curb serious crime.
These articles relate to Prof. Garnett's important work set forth in Ordering the City. You may also be interested in a recent series of posts on Prawfsblawg on Ordering the City, with contributions from Ben Barros, Tracey Meares, Chris Serkin, Lee Fennell, Stephen Clowney, and Michele Wilde Anderson.
Saturday, March 27, 2010
Mark A. Edwards (William Mitchell) has posted Acceptable Deviance and Property Rights. The abstract:
Compliance with – or deviance from – law is often dependent upon the law’s convergence with – or divergence from – normative sensibilities. Where the legality and social acceptability of behavior diverge, deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
Friday, March 26, 2010
In my previous post, I briefly sketched the thesis of my recent paper on local growth politics. Here, I want to provide some important background for the project. Those of us who study land use and local government tend to believe that local politics are dominated by homeowners, who disproportionately participate in local politics, either by vote or otherwise (such as appearing at a hearing to oppose a rezoning request), and whose participation is motivated solely by their own self-interest as homeowners. That is, homeowners will advocate whatever local policies will boost property values, lower property taxation, ensure quality schools for their children, and protect neighborhood quality of life. Usually, this means that homeowners support growth controls, exclusionary zoning policies that enable communities to screen for wealth, and opposition to almost any new development. The thesis that "homevoters" control local government was most recently articulated in William Fischel's influential book, The Homevoter Hypothesis, but it is also amply supported by other important scholarship and caselaw.
As Fischel points out in his book, the homevoter hypothesis really only works in relatively small suburban communities where homeowners can be assured of dominance. It works less well in large, more diverse cities. But Fischel assures us that this fact does not diminish the importance of his thesis because, after all, only 25% of the nation's population live in cities larger than 100,000 residents. We are, in other words, a suburban nation full of homevoters. Again, land use caselaw seems to support Fischel here, as so many of the important land use cases deal with small suburban communities attempting to use their zoning powers to maintain their suburban character. Scholarship on land use and local government, likewise, frequently bemoans the exclusionary practices of small suburbs and the increasing fragmentation of metropolitan regions brought on by the proliferation of such small suburbs.
Having been steeped in this literature, I could not have been more surprised when I started reading a book by Robert Lang and Jennifer LeFurgy entitled Boomburbs: The Rise of America's Accidental Cities (2007). According to the authors, Fischel's depiction of small suburban communities dominated by homevoters completely ignores what was (at the time) the fastest-growing, highly populated, and most politically influential region of the country, the Sunbelt. Most communities in this region are neither small suburbs nor conventional big cities but "boomburbs," large, incorporated cities of over 100,000 that are "suburban" in density and attitude but "urban" in size and diversity (ethnic, architectural, and otherwise). The authors argue that these boomburbs are far too large and diverse for homevoters to dominate; instead, boomburb politics are driven by the "growth machine," a matrix of interests that profits from development, including politicians, developers, construction companies, unions and the media. It is not only size and diversity that weaken the influence of the homevoter; boomburbs virtually all use at-large voting systems that tend to dilute the influence of neighborhood homeowners' groups and maximize the influence of deep-pocketed developers.
Lang and LeFurgy's book was a revelation, but something about their argument struck me as far too simplistic. A significant plurality of the boomburbs the author identify are right here in southern California. Indeed, southern California has often been considered an archetype of the "growth machine" thesis. However, southern California has also been labeled the birthplace of the NIMBYs ("Not in My Backyard,") a somewhat more pejorative name for Fischel's homevoters, and writers like Mike Davis have chronicled the bitter growth wars southern California has endured over the past several decades as developers have done battle with affluent homeowners. It occurred to me that Lang and LeFurgy were ignoring something crucial: In the sunbelt, and in southern California specifically, "homevoters" who are dissatisfied with the "growth machine" and the at-large system can use the initiative process to put the brakes on growth. In fact, homeowners in southern California have passed scores of slow-growth initiatives after the passage of the epochal (or apocalyptic) Proposition 13, which itself was partially the result of strong anti-growth sentiment. So there seems to be an uneasy equilibrium between development interests and homevoters in places like southern California, brought about, at least in part, by the co-existence of at-large voting and the initiative process. Making matters even more interesting, I discovered that both at-large voting and the initiative process were enacted as part of the Progressive movement's effort to reform local politics. This signaled that despite the opposition between pro-growth and anti-growth interests built into the political structures of boomburbs, there might be some underlying continuity as well. Indeed, that continuity became my thesis, as you can see from my previous post. You can also download the paper here.
Thursday, March 25, 2010
As I mentioned in my previous post, one of the latest dramas in my life is a ginormous pile of dirt that a developer recently dumped on three residential lots around the corner from my house. The dirt originally came from a massive, at least by Athens standards, excavation of about 75,000 cubic yards of dirt for the basement of the new Special Collections library here at UGA. Fill dirt was once quite a commodity when the housing market was hot, but now, according to a friend of mine who's a commercial contractor, you can't give the stuff away. Or, apparently, you can, to a developer who will then store it in some lots where he maybe has plans, sometime in the future, to build on the lots.
The problem is that he hasn't drawn up any plans, nor does he have any engineering drawings to show how to accommodate between 1,000 and 2,000 cubic yards (about 100-200 tandem dump truck loads) of dirt on the property. We got wise to the problem one morning earlier this month when we heard the sounds of diesel engines idling, and dump truck after dump truck banging as it emptied its load.
Now we get to the part where I'm the crazy neighbor lady. I went away for Spring Break, hoping that my neighbors would be able to stop this madness by calling in the county enforcement folks. However, apparently dumping continued unabated for at least 3 days. When I returned to town the pile had grown to its current size. I then read a column in our local weekly about the great Special Collections library project. While I agree about the coolness of the SC library, I felt like the folks at the magazine should know about its shadow side. So, I e-mailed the columnist and, while I was at it, the on campus newspaper and the local daily. The campus newspaper, the Red and Black, ran the story (see first link above). It turns out that the Atlanta TV stations read the R&B, and next thing I knew I was getting calls from television reporters. They were really interested in our giant dirt pile! I was surprised, but I agreed to give them interviews. While they were out, they got the developer on tape too and ran the story. (Visit this link on the law school's website to see most of the media coverage - thanks to the law school's public relations staff for pulling that together.)
The next day I was a local celebrity, and not in a totally good way. My favorite reaction was from a university staffer in my husband's building who, not realizing my husband was related to me, told him, "That land use lady needs to find something to do!" (When a co-worker of my husband brought our relationship to the staffer's attention, he was apologetic and chagrined. I just think it's funny!)
I've worked all sides of the development game in my career, including representing developers and neighbors. I figure it was inevitable I would turn out to be the cranky neighbor myself. I've started calling myself the queen of the dirt pile.
The local weekly, the Flagpole, has the most interesting take on the story. Their City Editor, Dave Marr, ran a good column that explains our confusion about how the developer seems to have threaded multiple loopholes in the code.
I've got some great folks in the neighborhood working with me, including a couple of experts on soil and erosion and a civil engineer. A local commissioner pulled together a good meeting with county staff yesterday and we're working toward a solution. In the meantime, I'm trying to catch up on my work and get ready for UGA's annual Red Clay conference on environmental issues. I'm moderating a panel on Georgia's water rights problems called "Is Atlanta Really the 800 Pound Gorilla?"
Jamie Baker Roskie
UPDATE: The latest from the UGA student newspaper on the controversy.
UPDATE TWO: The dirt pile now has its own website.
Jamison E. Colburn (Penn State) has posted Permits, Property, and Planning in the 21st Century: Habitat as Survival and Beyond, forthcoming in REBUILDING THE ARK: NEW PERSPECTIVES ON ESA REFORM, Jonathan Adler ed., 2010. The abstract:
In our legal tradition there are permits and there is property and they are like oil and water. The norms, institutions, and agents of one seem antagonistic — even antithetical — to the other. Property is reliable, tangible, and intimately bound up with one’s autonomy, one’s severability from society. Government permissions, by contrast, are fleeting, revocable, and inherently social. They are the mechanism of choice by which individual plans for assets are filtered and reconciled with collective needs. If we are to get around the impasses we have reached today in protecting nature’s composition and function, however, we must strive to better combine permits and property and leave behind exactly the sort of distinctions we now use in differentiating permits from property. In this piece, I argue that our instinctual distrust of lumping property and permits together ought not to inhibit us from exploring why or how permissions and property are comparable. Property rights in our legal system are bi-modal: they secure privileges, powers, and immunities as against other agents within a legal jurisdiction while simultaneously doing so separately against the agents of that legal jurisdiction. Ownership works its magic in part by securing to owners a subordinate form of sovereignty: standard, recognizable forms of dominion that order behaviors without the need for constant recourse to fine print. And property’s bimodality — its nature as right in rem and as right against government — invariably chills discussions of making government permissions more “like” property. Modeling Endangererd Species Act (ESA) habitat permissions after property, however, might paradoxically empower our government agencies to protect more habitat more effectively over the long term and at broader scales, in good part because doing so could: (1) simplify the mechanics of creating, adjusting, and reordering these managerial permissions; (2) enhance market and non-market actors’ capacities to assess, compare, and benchmark their own (often quite disparate) conservation actions and plans; and (3) better standardize the risks being shifted by the permissions the government has created. Given our diversity of owners and regulators, the core challenge we face in the looming crisis of habitat loss and disturbance is enabling and prompting broader-scale cooperation. The ESA permissions that the government has been generating are, in a nutshell, too small, too customized, too opaque, and too bound up with the highly imperfect information that happens to be available at their origination. If they were modeled to function more like property, they would be more standardized, more recordable and searchable, more legally explicit, and likely more interchangeable and exchangeable as such.
Benjamin Barros (Widener) has posted Homestead and Other Legal Protections of the Home. The abstract:
In many legal contexts, homes are given more legal protection than other types of property. This additional protection can be divided into three categories. First, possessory rights in a home might be given more protection than possessory rights in another kind of property. For example, a legal system might make it more difficult for a creditor to force the sale a home to satisfy a debt than it would be for the creditor to force the sale of another type of property (say, a commercial office building) to satisfy that same debt. Second, a legal system might economically favor ownership or possession of a home over ownership or possession of another type of property. For example, ownership of a home might be subsidized where ownership of other types of property is not. Third, a home might be given special treatment when issues of privacy, freedom, or security are at stake. For example, a legal system might require the government to have a stronger justification for searching a home than is required for searching a commercial property.
This short encyclopedia entry focuses on the first category – those legal protections that give special protection to possessory rights in a home. It first elaborates on the distinction between rules favoring possession and the other two types of special legal protections given to homes. It then discusses various types of legal rules that give additional protection to possession of a home, including homestead rules favoring homeowners over creditors and tenure rules favoring renters over their landlords. Finally, it discusses theoretical issues related to the protection of possessory rights in homes, and considers open questions about whether this special protection is justified.
This essay by the Property Prof is a great introduction and analysis of these concepts, and well worth reading for anyone interested in the unique status of the home in property law.
Wednesday, March 24, 2010
Alejandro E. Camacho (Notre Dame Law & UC Irvine Law), Lawrence E. Susskind (MIT, Urban Studies & Planning), and Todd Schenk (MIT, Urban Studies & Planning) have posted Collaborative Planning and Adaptive Management in Glen Canyon: A Cautionary Tale. The abstract:
The Glen Canyon Dam Adaptive Management Program (AMP) has been identified as a model for natural resource management. We challenge that assertion, citing the lack of progress toward a long-term management plan for the dam, sustained extra-programmatic conflict, and a downriver ecology that is still in jeopardy, despite over ten years of meetings and an expensive research program. We have examined the primary and secondary sources available on the AMP’s design and operation in light of best practices identified in the literature on adaptive management and collaborative decision-making. We have identified six shortcomings: (1) an inadequate approach to identifying stakeholders; (2) a failure to provide clear goals and involve stakeholders in establishing the operating procedures that guide the collaborative process; (3) inappropriate use of professional neutrals and a failure to cultivate consensus; (4) a failure to establish and follow clear joint fact-finding procedures; (5) a failure to produce functional written agreements; and (6) a failure to manage the AMP adaptively and cultivate long-term problem-solving capacity.
Adaptive management can be an effective approach for addressing complex ecosystem-related processes like the operation of the Glen Canyon Dam, particularly in the face of substantial complexity, uncertainty, and political contentiousness. However, the Glen Canyon Dam AMP shows that a stated commitment to collaboration and adaptive management is insufficient. Effective management of natural resources can only be realized through careful attention to the collaborative design and implementation of appropriate problem-solving and adaptive-management procedures. It also requires the development of an appropriate organizational infrastructure that promotes stakeholder dialogue and agency learning. Though the experimental Glen Canyon Dam AMP is far from a success of collaborative adaptive management, the lessons from its shortcomings can foster more effective collaborative adaptive management in the future by Congress, federal agencies, and local and state authorities.
The city of San Marcos, Texas is embarking on an interesting land use code effort (based on using the SmartCode) to reform its existing code system.
Monday, March 22, 2010
Like Chad Emerson, I've been blogging less of late, although not for the glamorous reason that I have a popular book out! My excuses are more pedestrian - Spring Break (where I actually endeavored, mostly successfully, to take two and a half days off), recruitment for summer and fall clinic classes, and a 30 foot pile of dirt recently dumped in my neighborhood (more on that later).
Over Spring Break I visited Bethlehem, Pennsylvania. Bethlehem is most famous for being the former home of Bethlehem Steel and for being the sister community of Allentown, Pennsylvania, which is the subject of a Billy Joel song. As the song goes, "Well we're living here in Allentown...Where they're closing all the factories down..."
However, that was over 20 years ago - Bethlehem Steel stopped producing in 1995, and the site is being redeveloped. The former plant is now the home of a Sands Casino and the Smithsonian's National Museum of Industrial History, as well as business incubator space and other industrial uses. Also, a very cool website called Save Our Steel makes the case for retaining a historic industrial district on the site. One woman feels so strongly about it she's had the Bethlehem Steel site tattooed on her back, which is much more artful than it sounds. I'm wondering if Will Cook knows anyone else with a tattoo of their favorite historic site!
At any rate, Bethlehem is coming back in its own way. I'm attaching a photo of the Sands sign, which I took from a small Habitat for Humanity subdivision being built on a bluff overlooking the Bethlehem Steel site. It's a community definitely worth keeping an eye on.
Jamie Baker Roskie
Grant Nelson (Pepperdine) has posted Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law, forthcoming in Pepperdine Law Review, 2010. The abstract:
This Article argues for federal preemption of state procedures governing the foreclosure of mortgages and security interests in rents. While it also suggests that federal action limiting or prohibiting state anti-deficiency legislation may be appropriate, it leaves this issue to future consideration. Thus, its major focus is to advocate the congressional adoption of both Uniform Nonjudicial Foreclosure Act (UNFA) and Uniform Assignment of Rents Act (UARA) to make them available to all lenders nationwide. However, the federal government has a special stake in greater uniformity for its own account. This is especially the case as to mortgages on real estate. The fallout of the economic crisis of the past year and a half has made it the owner or guarantor of millions of mortgages. It will be confronted with an overwhelming number of foreclosures that will survive all attempts at modification. Given the fact that Fannie Mae and Freddie Mac are now wards of the federal government, the federal stake in efficient and fair foreclosure procedures has become compelling. Forcing the federal government to foreclose possibly hundreds of thousands of mortgages judicially in many states seems almost surreal. Given the enormous cost of this crisis to the federal taxpayers, the government should not be held hostage to arcane and outmoded foreclosure procedures. Even in nonjudicial foreclosure states, the federalization of Fannie Mae and Freddie Mac probably necessitates changes in some statutes to comply with constitutional due process mandates. At the very minimum, the federal Single Family and Multifamily Acts with minor modifications should be made available to all federal agencies.
Sunday, March 21, 2010
Abraham Bell (San Diego & Bar Ilan) and Gideon Parchomovsky (Penn & Bar Ilan) have posted The Hidden Function of Takings Compensation. The abstract:
To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects.
This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation reduces the incentives for corruption by limiting corrupt politicians’ ability to profit from takings. Specifically, we show that mandating compensation reduces the funds self-serving politicians can extort from property owners. At the same time, mandating compensation permits publicly-oriented politicians to continue pursuing socially beneficial projects.
This explanation yields important insights into the optimal structure of takings compensation. First, current incentives to use eminent domain excessively in the service of private developers cannot be blunted by modifying compensation policy. Only by a separate policy that charges developers for the benefits they receive can reduce or eliminate such misuse of the taking power. Second, overcompensation is even worse than under-compensation insofar as corruption is concerned. For this reason, laws requiring the payment of fixed percentage bonus above market value to property condemnees are in error. Additionally, where judges are thought systematically to overrate the subjective value owners attach to their properties, market value compensation may have some merit. Third, public compensation cannot be replaced by a private insurance system, even if such insurance were practical, since insurance too would encourage corruption.
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